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Prisoner Processing and Management

It is my understanding that today the United States has prisoners in Iraq and elsewhere around the world, arrested for crimes committed during the Global War on Terror and for a variety of other criminal actions. (Please don't read this as sympathy, just a statement of facts written at 0100.)

Our US due process requirements would demand certain criteria be met in order to hold a trial and adjudicate the defendant appropriately, within a reasonable period. (Again, not an ACLU lawyer) It is further my understanding that these suspects/defendants/often zealot murderers are going beyond what the American citizen considers reasonable. My question to this group is - what is the cause of this and what steps are we as a force taking to expedite these hearings?

As a former attorney, I am surprised to hear that we are holding these prisoners for so long without complete processing, and I recognize that the postings on detention operations above are key for a successful counterinsurgency. (I would suggest that an expedited detention rapidly loses efficacy, if you hold prisoners without tangible evidence and without a trial.)

Recognizing that some of this information may be sensitive, please PM me if you are uncomfortable answering in the public forum.

"New knowledge is the most valuable commodity on earth. The more truth we have to work with, the richer we become."

I have no uncommon or privileged information on this topic. It is just my hunch that we are delaying trials as a safeguard against the possibility that we are faced with the option of either an open trial or releasing the prisoners. Should that situation result, we will logically start with the people held the longest and work our way back. It is in our interest, in such a situation, for us to have the longest queue possible. That way, we have a time buffer between capture and trial for intelligence to become less timely and irrelevant to current operations.

....Human Rights Watch monitored court proceedings and met with judges, defense attorneys, defendants, and others. We found that the majority of defendants endured lengthy pretrial detention without judicial review, that they had ineffectual legal counsel, and the court frequently relied on the testimony of secret informants and confessions likely to have been extracted under duress. Judges in many instances acknowledged these failings and dismissed some cases accordingly, particularly those involving alleged torture, but the numbers of cases where such allegations arise suggest that serious miscarriages of justice are frequent. Human Rights Watch also monitored a limited number of cases involving children, and found that the authorities failed to hold them separately from adult detainees, and that their access to counsel and prompt legal hearings was no better than that of adults.

Structural problems, due in part to political fractiousness and inefficiency among Iraqi institutions, play a role in undermining the CCCI’s proceedings. Iraq’s parliament approved a General Amnesty Law in February 2008, in part to reduce the detainee population and thus the burden on the justice system. Persons accused of war crimes, crimes against humanity, and other offenses committed between July 1968 and May 2003 as outlined in the statute for Iraq’s Supreme Criminal Tribunal would not be eligible for amnesty. The amnesty as passed would benefit persons held for more than six months without an investigative hearing, or for more than a year without referral to a court. Implementation, however, has lagged very seriously. The continued high number of persons in detention facilities has put serious strain on the CCCI, where dozens of judges hear thousands of cases a month, and further delayed judicial review of detentions......

Thanks for the insights Jedburgh. The HRW stuff is helpful. I suspected much of what schmelap posted is on point from a rationale perspective. While most Americans sleep ignorant (intentionally or not) there is a nagging voice in my head that asks why can't we move this along, whether using Iraqi standards of justice our our own.

"New knowledge is the most valuable commodity on earth. The more truth we have to work with, the richer we become."

This is really a self-inflicted head wound, as a result of not understanding and staying in our lane from the start.

First, if you keep your missions straight by not confusing the COIN being conducted by the HN government with the mission that you are conducting to support their operation. I argue that it is FID, but recognize that reasonable minds (and many joint and service pubs and a whole array of professional articles, blogs and books) can differ.

When we make it OUR operation, we inherit all of the baggage that comes with that role. To clean this mess up I would simply:

2. Place all detainees under their control, making it FULLY THEIR DECISION as to how they process these guys. Many would be released immediately, many would be shipped to their nation or origin, etc. We can advise, but we should not impose ourself on this process.

3. Apply that same "supported/supporting" relationship to the entire operation. In the spirit of promoting Democracy, you have to take the bad with the good. Sometimes Hamas gets elected. Deal with it, that is what makes democracy work. Sometimes the elected officials won't share the same priorities and national interests that the U.S. has in that region. Again, suck it up, that is how Democracy works. To do otherwise, to simply ignore or override HN wishes where it runs counter to our view is not Democracy, it is hypocracy. And that leads to wicked problems... like what to do with all these detainees.

Isn't our problem more one of how do we control the resolution of these detainees?

exceptions

Bob's World, would say there should be an exception w/ individuals that are wanted in the U.S. for pre-existing crimes (some members of AQ)? Do we have the right to extridite them if they are captured by U.S. forces? Other then that, I agree 100%. The country that has the largest percentage of it's population incarcerated should probably not be telling other countries how to run there prisons, or running them for them.
Reed

2. Place all detainees under their control, making it FULLY THEIR DECISION as to how they process these guys. Many would be released immediately, many would be shipped to their nation or origin, etc. We can advise, but we should not impose ourself on this process.

So, interesting approach to a resolution, but I worry that the natural outcome is what is in bold above - an immediate release to the prisoners. Based on the SOFA effective date of 1 JAN, I suspect that we will have to follow through with the idea of turning them over, but I suspect that this is a mess right now, and dumping a mess only results in the release of these prisoners (most, if not all of whom were detained/arrested for some reason.)

As for extradition, I suspect that this is a reasonable request, depending on the perspective of the HN govt., but I would prefer to see the trials occur on HN soil where the prisoners are, under the laws of the HN. Naturally, this empowers the HN govt, and places the power back in the hands of the people where the crime was committed. I like the idea of us advising/coaching, but I believe that the issue is upstream - Can we prove what the defendant is accused of, even under the more lenient legal requirements of HN law

The question still remains - what system or processes are in place to facilitate this occurring?

"New knowledge is the most valuable commodity on earth. The more truth we have to work with, the richer we become."

If we allow the HN to perform the HN role, we (The US) do not have to concern ourselves over proving anything. Not in our lane. As to oversight, I believe this is one function the UN could perform reasonably well to ensure that global sensitivities are not abused in the process, and it is best that this does not become an American operation.

One key to remember is that insurgents, by definition, are a part of the populace. Key to an enduring resolution to any insurgency is for the HN government involved in the insurgency to address their failures that gave rise to the insurgency in the first place, and to sort through those members of the populace that participated and adjudicate their disposition. Most should be returned to assist in being part of the larger solution. Some will indeed need to face harsh legal consequences for their actions, but again, this is not something that an outside nation, no matter how deeply they have embroiled themselves in the problem, needs to concern themselves over.

As to the larger question of why 40% of the foreign fighters in Iraq are Saudi Citizens, 20% Libyan, and 20% Algerian (per open source); these guys really need to be sent home, or perhaps granted asylum as many are probably insurgents at home.

I guess my point is, that if you have a confused understanding of the overall nature of the problem, then you are likely to come up with confused (ie, ineffective) ways for addressing it.

Fact is, that if Saudi insurgents believe that Phase 1 to a successful insurgency at home is to go abroad to attack the US in an effort to break the support of the US to keeping that Saudi government in power; you have to ask yourself if we have the right relationship / policies in place as to the US and the Kingdom.

To simply ascribe the GWOT to Bin Laden being some sort of Pied Piper with a magic ideological "flute" that makes otherwise satisfied Muslim citizens from a broad cross-section of the Middle East to mindlessly follow him is naive at best.

We can wrestle with the symptoms of this problem until we deplete our wealth, strength, and credibility as a nation. History is full of examples of how others have fallen into this trap (Greece, Rome, Great Britain, etc). Or, we can assess the situation with honesty and humility and change the focus of our engagement to addressing the causes. My vote is for the later.

This dilemma over what to do with detainees is rooted firmly in the former.

One key to remember is that insurgents, by definition, are a part of the populace.

As to the larger question of why 40% of the foreign fighters in Iraq are Saudi Citizens, 20% Libyan, and 20% Algerian (per open source); these guys really need to be sent home, or perhaps granted asylum as many are probably insurgents at home.

I pulled these two out of the larger, as again, I am most concerned with the disposition of the detained today. It would seem that we have a conundrum. We rightfully invade a nation and then commit to developing it back into a sovereign nation. While we are there, we make a bit of a mess while solving many of the nation's other woes.

The insurgent, as you point out above is not necessarily a member of the larger populace. Syrians, Libyans, et al, were found all throughout Iraq in the insurgency. While they would have been considered enemy combatants under force on force operations, we find ourselves treating them more as criminals. These criminals, in turn require disposition.

Turning it completely to the HN is likely not going to be a success as I would define it (conviction of the defendant), and therefore to me cannot be a viable COA. In turn, UN oversight is likely not possible given the fact that some detained were so detained on the basis of US classified data (I suspect, no personal knowledge). Further, I am not crazy about UN oversight as it strikes our credibility. Again, I don't suspect that we will find resolution here.

"New knowledge is the most valuable commodity on earth. The more truth we have to work with, the richer we become."

There is no good answer, and to continue to try to "control" this process only mires us more deeply into it.

To be a soldier is not a crime. When a war is over, POWs are released.

Ok, you say, but this is a different type of warfare, where both parties are not states, and these guys are by definition breaking the law when they take up arms to challenge the state. All very true.

But consider US law on this topic: "But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

Key words are "right" and "duty." Under the law, a right is something that cannot be taken away; and a duty is something that one must do. In this case that right and that duty are to rise up in insurgency.

The US is probably the only nation in the world that would dare to incorporate such an inflammable piece of populace empowering language into the fabric of its doctrine, but we did and it in large part defines what we stand for as a people and a nation.

I don't make this stuff up, its right there at the heart of our Declaration of Independence. While I cannot speak for how we will deal with the problem of detainees, I for one would release them all today before I would compromise that document. My preference though, is to allow the Host Nations to resolve this based on their own laws.

Similarly, I would not be so arrogant as to tell them what those laws should be or how they should interpret them to achieve a result favorable to me as a foreigner, because:
"...it is the Right of the People ...to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

The defense of these ideals, and others like them, are why I put on a uniform every day, and there is no detainee in the world worth compromising them over.

But consider US law on this topic: "But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

Key words are "right" and "duty." Under the law, a right is something that cannot be taken away; and a duty is something that one must do. In this case that right and that duty are to rise up in insurgency.
. . .

The defense of these ideals, and others like them, are why I put on a uniform every day, and there is no detainee in the world worth compromising them over.

Maybe I'm picking nits, but the last time I checked, the Declaration of Independence was not US Law. Also I think that rights and duties, as used in the Declaration, are moral, not legal, concepts. However, I concur that the ideals the Declaration espouses are noble and ought to constrain how the US conducts itself vis-a-vis other nations, whether viable or failing. I hate to think of the US as being lumped in the same category as HRH George III of England and his ministers.

Vir prudens non contra ventum mingitThe greatest educational dogma is also its greatest fallacy: the belief that what must be learned can necessarily be taught. — Sydney J. Harris

"Law" is a broad area and much of it is not black and white

Originally Posted by wm

Maybe I'm picking nits, but the last time I checked, the Declaration of Independence was not US Law.

You may be right, but we probably talk way too much these days about "the rule of law." The fact is that the rule of law, or blackletter law, has never been adequate in providing justice. I had a contracts professor who was as brilliant as he was ecentric, and his area of specialty was "Equity," or the common law. Concepts such as "good faith" and "fair dealing" are central to the concept of equity; and are a hedge against black letter law that at times leaves little room for "justice" in its pursuit cleancut right and wrong.

So, though I may be completely wrong on this, I am very comfortable in taking the positon that our "law" is the totality of many things; and just as legislation is defined by both regulations and case law, so to do items like our declaration and even the uncodified express intent of lawmakers and judges contribute to the laws of this land.

"rule of law" is a good soundbite, but it leaves a lot on the cutting room floor.

Some days I think we have grown up and become our parents. I would hate to think that that is as inevitable for nation as it is for a man.

Nations, as was pointed out long ago by Thomas Hobbes in Leviathan, are artificial persons, just as corporations are. We can and do make judgments about them just as we do about our neighbors and the folks we see on the nightly news or American Idol. Maybe we rush to judgment in doing so, but that, I suispect, is part of who and what we are as finitely rational beings who are also creatures of need.

Vir prudens non contra ventum mingitThe greatest educational dogma is also its greatest fallacy: the belief that what must be learned can necessarily be taught. — Sydney J. Harris

So, though I may be completely wrong on this, I am very comfortable in taking the positon that our "law" is the totality of many things; and just as legislation is defined by both regulations and case law, so to do items like our declaration and even the uncodified express intent of lawmakers and judges contribute to the laws of this land.

"rule of law" is a good soundbite, but it leaves a lot on the cutting room floor.

Who we are as a nation (our national character if you will) is much more about things like thevalues expressed in the Declaration and how we treat each other. It is much less about the laws we pass or the legislators and judge's intent in their passage and rulings. For example, I think that only after sunset is it illegal to beat one's wife in Georgia (don't want those screams disturbing the neighbors' repose). Regardless of what this law says, we tend to think these days that good folks in America just don't beat their spouses--that's national character and has nothing to do with what the law says or was intended to say. I'd add that SCOTUS rulings tend to be about national character, but not always.

Vir prudens non contra ventum mingitThe greatest educational dogma is also its greatest fallacy: the belief that what must be learned can necessarily be taught. — Sydney J. Harris

Poor Jason Port asked his question three times...

Finally answered himself.

"what is the cause of this and what steps are we as a force taking to expedite these hearings?
. . .
While most Americans sleep ignorant (intentionally or not) there is a nagging voice in my head that asks why can't we move this along, whether using Iraqi standards of justice our our own.
. . .
The question still remains - what system or processes are in place to facilitate this occurring?

the answer:

Turning it completely to the HN is likely not going to be a success as I would define it (conviction of the defendant), and therefore to me cannot be a viable COA. ... Again, I don't suspect that we will find resolution here.

True, not likely to be a success -- but the only real option we have ever had. As for right to a hearing, etc. -- true under US law and and general practice but not really appropriate for a combat area, it's in the 'too hard' and 'negative return for effort expended' boxes. IOW, it would be nice but realistically it would turn into a legal and political bucket of worms that would satisfy no one.

So thanks to all responding to the initial question which as Ken points out, I likely answered part of myself. I was just trying to find some ground truth.

On the other hand, this debate is worthwhile. As was pointed out we have a few "controlling" documents here -

- the Geneva Convention, which governs the rule of war, and which I would suggest has an outdated definition of soldier in the current unconventional fight.

- Hobbes' definition of a nation - or frankly any definition, which defines it not in the context of borders but rather in the context of associated people, whether tribal, religious, or even more loosely as organizations. The Pashtun tribe of Afghanistan and Pakistan are more united than most countries could hope.

- Our laws - within which I would include the Declaration of Independence, our Constitution, or even our regulations for civil and criminal laws. These govern what is right and wrong and what happens when someone violates our code – and further, as WM points out, should act as our guide in defining to what standard of behavior we should hold ourselves.

- The laws of the HN – Naturally, crimes committed in the HN are under the jurisdiction of the HN, but the spirit of the definitions of nation by Hobbes, and of soldier in the Geneva Convention must be examined in this context to determine whether the act is criminal or simply a “military” response to the force of another’s aggression. Fortunately, in nations like Iraq, where their code of laws is 5-10 times older than our own and where the burden of proof is lower, and punishments higher, mean that criminals are punished more severely.

Unfortunately, any two of the four of the above will naturally conflict, in the context of the counter insurgency. Our laws, the laws of Iraq, or A-stan, the belief that a nation is only made of borders, and the belief that the Geneva Convention is still a representation of warfare after 60 years bring the conclusion that we need to re-look at the governance of the SASO/COIN environment, especially in post-conventional conflict.

Again, this is purely philosophical, because when a war is over, and soldiers are returned to their parent nation, they don’t continue their vendetta – they shake off the dirt and attempt to leave the grudge at home. In the case of the insurgent, this is not the case. Surrender by AQ will only serve to create splinter groups and further inspire more acts of terror.

"New knowledge is the most valuable commodity on earth. The more truth we have to work with, the richer we become."

Not necessarily.

...In the case of the insurgent, this is not the case. Surrender by AQ will only serve to create splinter groups and further inspire more acts of terror.

Lot of former insurgents all over the world have shaken it off and settled down with only occasional lip service to old grudges.

Recall that AQ is itself a splinter group that will further splinter many ways, it's an amorphous collection of folks who come, sign on -- and die or go or hang around. Some will commit more terrorist acts, some will not. Terror has been a technique for thousands of years, it's always been with us. It surges and recedes, almost cyclically. It isn't going away but it will get down to a bearable level.

As to the specific issue - Iraq ...

the SOFA, linked here, tells us what we have to do - subpara 4 is most material.

Article 22
Detention

1. No detention or arrest may be carried out by the United States Forces (except with respect to detention or arrest of members of the United States Forces and of the civilian component) except through an Iraqi decision issued in accordance with Iraqi law and pursuant to Article 4.

2. In the event the United States Forces detain or arrest persons as authorized by this Agreement or Iraqi law, such persons must be handed over to competent Iraqi authorities within 24 hours from the time of their detention or arrest.

3. The Iraqi authorities may request assistance from the United States Forces in detaining or arresting wanted individuals.

4. Upon entry into force of this Agreement, the United States Forces shall provide to the Government of Iraq available information on all detainees who are being held by them. Competent Iraqi authorities shall issue arrest warrants for persons who are wanted by them. The United States Forces shall act in full and effective coordination with the Government of Iraq to turn over custody of such wanted detainees to Iraqi authorities pursuant to a valid Iraqi arrest warrant and shall release all the remaining detainees in a safe and orderly manner, unless otherwise requested by the Government of Iraq and in accordance with Article 4 of this Agreement.

5. The United States Forces may not search houses or other real estate properties except by order of an Iraqi judicial warrant and in full coordination with the Government of Iraq, except in the case of actual combat operations conducted pursuant to Article 4.

I don't see any other law which is material to the specific question.

PS: for the two other lawyers here (and any such others of that ilk that happen upon this), they might consider the distinction between what is relevant (in terms of both but for and proximate causation) and what is material - a narrower scope of inquiry addressed to the practical application expressed in the specific question (which also saves bytes).